Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order: SOR/2024-195

Canada Gazette, Part II, Volume 158, Number 21

Registration
SOR/2024-195 September 25, 2024

SPECIES AT RISK ACT

Whereas the Spotted Gar (Lepisosteus oculatus) is a wildlife species that is listed as an endangered species in Part 2 of Schedule 1 to the Species at Risk Act footnote a;

Whereas the recovery strategy that identified the critical habitat of that species has been included in the Species at Risk Public Registry;

Whereas a portion of the critical habitat of that species is in a place referred to in subsection 58(2)footnote b of that Act and, under subsection 58(5) of that Act, that portion must be excluded from the annexed Order;

And whereas, under subsection 58(5) of that Act, the Minister of Fisheries and Oceans has consulted with the Minister responsible for the Parks Canada Agency, namely the Minister of the Environment, with respect to the annexed Order;

Therefore, the Minister of Fisheries and Oceans makes the annexed Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order under subsection 58(4) and paragraph 58(5)(a) of the Species at Risk Act footnote a.

Ottawa, September 20, 2024

Diane Lebouthillier
Minister of Fisheries and Oceans

Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order

Critical Habitat

Application

1 Subsection 58(1) of the Species at Risk Act applies to the critical habitat of the Spotted Gar (Lepisosteus oculatus) — which is identified in the recovery strategy for that species that is included in the Species at Risk Public Registry — other than the portion of that critical habitat that is in a place referred to in subsection 58(2) of that Act.

Repeal

2 The Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order footnote 1 is repealed.

Coming into Force

Registration

3 This Order comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Following the posting of the amended recovery strategy for the Spotted Gar, the Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order (SOR/2017-264) contained an outdated description of the portions of the species’ critical habitat excluded from the application of the Order. An updated version was needed to eliminate this potential source of confusion.

Background

In 2012, the Recovery Strategy for the Spotted Gar (Lepisosteus oculatus) in Canada was finalized and included in the Species at Risk Public Registry (the Public Registry), identifying critical habitat for the species. Spotted Gar critical habitat was subsequently protected in 2017 through the Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order (SOR/2017-264; the 2017 CHO), made by the Minister of Fisheries and Oceans. The 2017 CHO triggered the application of the prohibition in subsection 58(1) of the Species at Risk Act (SARA) against the destruction of any part of the critical habitat of the Spotted Gar that is identified in the recovery strategy for the species, other than the portions of that critical habitat in places referred to in subsection 58(2) of SARA.footnote 2 The “Application” section of the 2017 CHO specifically identified which portions of critical habitat were in the places referred to in subsection 58(2) at the time: the portions in Point Pelee National Park of Canada and Big Creek National Wildlife Area.

“Application” section of the 2017 CHO:

On February 8, 2024, the final amended Recovery Strategy and Action Plan for the Spotted Gar (Lepisosteus oculatus) in Canada (the amended Recovery Strategy) was included in the Public Registry. The amended Recovery Strategy identified additional areas of Spotted Gar critical habitat compared to the critical habitat areas originally identified for the species in the 2012 recovery strategy. A portion of this new critical habitat is located within the Long Point National Wildlife Area (NWA), a place captured by subsection 58(2) of SARA.

Subsection 58(2) of SARA sets out the process for how portions of critical habitat located in certain types of parks, areas and sanctuaries are to be protected. A description of the critical habitat in such places is to be published in the Canada Gazette within 90 days of the posting of the recovery strategy identifying the critical habitat. Under subsection 58(3) of SARA, the prohibition in subsection 58(1) of SARA against the destruction of critical habitat applies to that area 90 days after the description is published. On April 27, 2024, an updated critical habitat description that included reference to the Long Point NWA was published in the Canada Gazette, to legally protect the Spotted Gar critical habitat in this NWA and to continue to protect the critical habitat in Point Pelee National Park of Canada and Big Creek NWA.

Owing to the 2017 CHO’s dynamic incorporation by reference of the critical habitat identified in the recovery strategy for the Spotted Gar,footnote 3 the 2017 CHO automatically applied to the new areas of critical habitat identified in the amended Recovery Strategy, outside of places referred to in subsection 58(2), upon the posting of the final amended Recovery Strategy to the Public Registry. However, the text following “more specifically” in the “Application” section of the 2017 CHO has become inaccurate as it does not mention the Long Point NWA.

Objective

The objective of this regulatory initiative is to make a replacement CHO for the Spotted Gar to maintain the prohibition against destroying any part of the Spotted Gar’s critical habitat outside of the parks and areas referred to in subsection 58(2) of SARA, while eliminating any confusion about which portions of the species’ critical habitat are excluded from the application of the Order because they have been protected according to the requirements of subsection 58(2) of SARA instead.

Description

The 2017 CHO (SOR/2017-264) has been repealed and replaced with a new Critical Habitat of the Spotted Gar (Lepisosteus oculatus) Order (the replacement CHO).

The replacement CHO maintains the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Spotted Gar that is identified in the recovery strategy for the species, excluding any portions in a place referred to in subsection 58(2) of SARA.

In order to preserve the dynamic nature of the CHO, the CHO no longer includes references to the specific areas subject to subsection 58(2) of SARA. This revised drafting approach has the advantage of avoiding the need to update existing CHOs because of a change to the portions of critical habitat subject to subsection 58(2) of SARA. Those portions of critical habitat are nevertheless protected by the application of subsections 58(2) and 58(3) of SARA and do not need to be referenced in a CHO made under subsections 58(4) and 58(5) of SARA.

The replacement CHO continues to include a dynamic incorporation by reference to the recovery strategy, meaning the CHO will automatically apply to any modification to the critical habitat subsequently made in an amended recovery strategy included in the Public Registry.

Regulatory development

Consultation

As the making of the replacement CHO protects no new critical habitat, and only eliminates confusion in the existing CHO, no separate consultation was undertaken.

Modern treaty obligations and Indigenous engagement and consultation

As per the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted on this regulatory initiative. The assessment concluded that implementation of this regulatory initiative will not have an impact on the rights, interests and/or self-government provisions of modern treaty partners. Critical habitat for the Spotted Gar is located entirely within southern Ontario, where there are currently no modern treaty territories.

Instrument choice

To eliminate the potentially confusing wording of the 2017 CHO, only a regulatory option was considered.

Regulatory analysis

Benefits and costs

The replacement CHO has the same effect as the existing 2017 CHO. It maintains the prohibition in subsection 58(1) of SARA against the destruction of any part of the critical habitat of the Spotted Gar that is identified in the recovery strategy for the species, excluding any portions in a place referred to in subsection 58(2) of SARA. Therefore, repealing and replacing the CHO will impose no incremental costs on Canadians, businesses or Government.

Compared to the 2017 CHO, the replacement CHO no longer includes references to the specific areas subject to subsection 58(2) of SARA, and therefore has the benefit of not needing to be updated because of a change to the areas referred to in subsection 58(2) that contains critical habitat.

Small business lens

The small business lens was applied and it was determined that the replacement CHO does not impose any incremental costs on small businesses.

One-for-one rule

The one-for-one rule does not apply to this regulatory initiative, as no additional administrative burden is being imposed on businesses.

Regulatory cooperation and alignment

SARA is a key tool for the conservation and protection of Canada’s biological diversity and fulfills a commitment made under the Convention on Biological Diversity. Therefore, the replacement CHO, like the 2017 CHO, will respect this international agreement in furthering the protection of significant habitats in Canada to conserve wildlife species at risk.

Effects on the environment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan to identify the potential for important environmental effects was conducted. It concluded that a strategic environmental assessment was not required for the making of the replacement CHO, because the replacement CHO simply maintains the legal protections afforded by the 2017 CHO.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this regulatory initiative.

Implementation, compliance and enforcement, and service standards

As the replacement CHO simply maintains the prohibition on destroying Spotted Gar critical habitat that was triggered by the 2017 CHO, there is no new provisions to implement and there are no changes from a stakeholder’s perspective.

Any individual planning on undertaking an activity within the critical habitat of the Spotted Gar should continue to inform themselves as to whether that activity might contravene one or more of the prohibitions under SARA and, if so, should contact the Department of Fisheries and Oceans (DFO). For more information, proponents should consult DFO’s projects near water web page.

Under the penalty provisions of SARA, when found guilty of an offence punishable on summary conviction, a corporation other than a non-profit corporation is liable to a fine of not more than $300,000, a non-profit corporation is liable to a fine of not more than $50,000, and any other person is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both. When found guilty of an indictable offence, a corporation other than a non-profit corporation is liable to a fine of not more than $1,000,000, a non-profit corporation is liable to a fine of not more than $250,000, and any other person is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both.

Contact

Courtney Trevis
Director
Species at Risk Operations
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: SARA_LEP@dfo-mpo.gc.ca